Last case of the morning. Deemer versus beard. Good morning. May I please the court. Paul Hughes for a plan of appellant. James Deemer. I'd like to reserve four minutes for a bottle. That's granted. Thank you. Your honor, this case presents the question of whether an individual who presses a claim for unconstitutional confinement by the state may bring that claim in a section 1983 action in a limited circumstances where that individual lacked the ability to press a federal habeas claim. In this case. But what why is that significant? I mean, in, in heck, Justice Scalia basically said, you know, the fact that somebody's out, you know, the fortuity of that really doesn't matter. And the position that there may be some situations where we don't want to apply this rule was pretty much rejected. Was it not? You're on a few points on that
. First, I think the rule that we advocate is consistent with the principle that motivated heck, which was as we explained in a briefing that the statutory reconciliation between section 1983 and federal habeas. Heck said that when habeas is available, you can't use section 1983 as a means to circumvent that. That has no bearing on a case like this when federal habeas is not available. And what I mean, actually, the opinion aligned it with malicious prosecution, it really doesn't talk about availability. Well, a few points about the conflicting policies. Well, with respect to the extent that heck itself did look to malicious prosecution, that's a consideration that is not relevant in this particular case because here there's no question of malicious prosecution, even though heck applies in this case, this is really a claim of false imprisonment. So even if one were to look to the common law and a law of malicious prosecution, which is as Scalia said, favorable termination was part of the common law, tort requirement there. That still doesn't say anything about this case where the challenge is not whether he was lawfully incarcerated in the first place. It's considered he was. The question was when did his term of imprisonment expire? And common law analogy to that claim does not have the same kind of discrimination. Well, it's just saying once you're out, you don't have a complaint anymore. Forget it. Your Honor, I don't think heck squarely just did not address that question
. The litigant in heck was incarcerated at the time. He had brought federal habeas actions that had been denied, but he was still incarcerated. And in fact, subsequently in the Muhammad v. Close case, the United States Supreme Court expressly noted that it had yet to resolve whether or not heck still applies in these circumstances. And subsequently, seven other circuits all have agreed that heck does not foreclose this kind of argument and specifically look to the Muhammad people. We rejected. We rejected. We rejected. And two other circuits. The second circuit. Yes, Your Honor. In Gillis and Williams, the court did look to this question. A few points to that
. First, I think both of those cases are more factually narrowed than the distinguishable from our case, which is a narrower case. In both of those, both Gillis and Williams, Your Honor, the litigant in those cases did not have a federal habeas claim because of their affirmative conduct. Where does it say in the jurisprudence that that matters or should matter? In virtually every circuit, perhaps with the exception of the second circuit that has adopted the rule, we advocate six circuits all say that that distinction is in fact the critical one. But we didn't say that. And we didn't rely on that in Williams. We didn't say, oh, by the way, he blew it himself. And so he's to blame. So that's right, Your Honor. The court did not rely on that particular distinction, but because it was in the category of case, where it was as affirmative conduct, I also don't think the court rejected the argument that we press here. Isn't your position that? Are you arguing current availability, unavailability for Suhabis because he's been released? Or are you arguing that he never had the ability to pursue federal habeas even when he was in jail? Because his sentence was too short. Or do they run together? It's actually the latter point, Your Honor. So that, okay. So you would say you want to essentially advantage someone who gets a short sentence
. In other words, if you get a sentence of a year, you get a sentence of six months, you get a sentence of who knows you'll have to set some sort of a time frame here. We can't just say short. It has to be defined. Then you can ignore everything else and come right in in the 1983. You don't need a favorable termination. You don't need anything because the sentence was too short to either get a state court decision or to pursue a federal habeas. And Your Honor, I think the rule that is applied in the other courts and what we believe is correct is it looks to the practicalities of the situation. If in the circumstances of particular case, federal habeas is a practical impossibility for the litigate. Not that somebody sat on his right, like the Williams case, but it was actually impossible for them to pursue habeas. Nothing in heck would suggest that that claim is barred. Let's assume you're right. But then you're saying that if you get a sentence of a year, six months, you don't even have to look at it. You come right in in the 1983
. Well, Your Honor, I think it still would look to the conduct of the individual litigate. But I think you may be right that the implications of that, if the sentence is too short. The implications are enormous. Aren't they? Well, Your Honor, I think the implications of the reverse rule of saying that somebody in that circumstance would be categorically without a federal remedy to challenge the underlying conviction, I think, would be quite enormous. And I don't think there's any suggestion that Congress thought that, in creating the federal habeas remedy, it was going to take a whole class of people and put them inherently forever out of federal court. But isn't this why the Supreme Court has got to figure this out? Well, I think we have circuit precedent here in our circuit. We have Williams. We have Gillis. There were other circuits here. And I think the Mohammed footnote said something about the issues unsettled. They recognized the issue is unsettled. We can't settle it. And I'm surprised that your answer to Judge Barry's question about what matters
. Does it matter that he's his sentence is short as it matter that he's out? Because my view or one argument I thought you would have was that since the whole principle is based upon the conflicting nature of habeas in 1983, if you haven't, you know, if you would decide in the 1982 action that it was wrong. But then the person's you know, you get money because it was improper that you're in jail, but you're still in jail. And yet if you're out, is there couldn't an argument be made that there is no intersection or conflict anymore? Because the person's out. The result you're going to get actually the 1982 action is going to resolve. What happens? Was was he improperly held? Yes, given money. If no, no big deal, but it doesn't really implicate or conflict with the current situation because he's out of it. Your Honor, I think my answer wasn't complete. I do not mean to suggest that somebody who was presently imprisoned would have a section 1983 claim that that is not that is not our position by any stretch. Our position in order to bring a 1983 claim, you certainly would have to be out of prison. My point was just the more limited one that as a practical implication because of the exhaustion requirement of federal habeas. That since one would first have to seek state remedies for people who have very short sentences. It would be the practical case when you're out. That isn't the only way for federal habeas
. In the B provision, there it doesn't you don't have to exhaust your remedies because it's or or there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the prisoner. And your Honor, if you're in a circumstance where habeas is available, we would have considered that. I'm surprised. I know it's mentioned in paragraph 27 of the complaint, but it wasn't discussed at all in your papers. You filed a state habeas. So you were able to do that alleging ineffective assistance of counsel in the most serious ways that could have been filed as a federal habeas. Under the B provision here. Well, you're as whether that you would have won on it predecessor counsel, not you. Whether you would have won on it or whether there would have been able to process it in time, although I must say it was only filed two months before he was let out of jail. Well, you're on to be sure that the state proceeding that was pending is as the state argues and I think with some force was under state law the correct proceeding, which isn't appeal from the parole board order. But he also had a state habeas. Yes, Your Honor. In the court of common pleas of sky-tailed counties that I've schoolical, schoolical county
. This litigant was doing everything possible to try to bring attention to the fact that he was being detained for 366 days beyond a sentence. And he got nowhere with with while the incarceration was running that that's precisely why he falls within this category of individual for but for providing this 1983 claim to proceed. There would be simply no remedy for his claim of unconstitutional confinement. And that's what's truly critical about this. We pretty much said in in case law that it's really up to the Supreme Court to clarify and we can't pull pieces. I mean, you have Justice Ginsburg and Spencer and Justice Stevens, you know, kind of moving over to the suitor way of thinking. But and that's really what you're asking us to do is to attach ourselves to the suitor way of thinking. But Supreme Court hasn't said that and haven't we said, you know, something weakens or undermines what they said in a direct directly applicable precedent. Too bad we can't take that as saying they have changed the precedent. Don't we have to wait for the Supreme Court? Well, we are two points that first. Seven other circuits have found that there is enough here particularly with the home be closed saying it's open not to feel bound by by any dicta from hack. The second point though with respect to this courts with respect to the court's precedent. I think there's certainly not binding on this court but subsequent unpublished opinions from the court, particularly the Mendoza B
. Meisel, have adopted precisely the role we advocate. You see there, they're not presidential opinions. I had to smile. I must say when I read your brief and you cast your reply brief, castigating the defendants for offer in only one defense. That is that your argument is foreclosed by circuit precedent. That's a pretty good argument. Don't you wish you could make that one? But you're all just saying that. You're all set in precedent that we don't do, we don't cobble together. We, you know, we leave it to the Supreme Court, the prerogative of overruling its own decisions. I mean, we've set an a presidential opinion that we don't, we don't do that. So that is binding. Yes, just again, you're on the fact that subsequent unpublished opinions we think should consider a role light on what the prior published decisions of the court. Again, we're not setting the body, but they do
. On our rule that we, that a panel of this court will follow what previous panels have ruled. And we can't even cite them in our opinion. That's, that's right. I just suggesting that if it were so clear that the Williams and Gillis foreclosed our argument, those, those subsequent unpublished decisions would be surprising. Thank you. Thank you very much. Well, here for me, I'm a rebel. Good morning, Your Honours. Mr. Allen Robinson of Representative Ellie, you were the defendants below who are former prison and parole officials, some who are still currently employed. The court obviously wrote, Gillis and Williams. So you're aware of those cases, say, um, a palant is asking the court to deviate from heck beyond for itself. And for from this court's president, based on what the other circuits have said. Okay. And there's a few things I think in heck beyond free that the circuits who don't follow it neglect to mention. Okay. All the other circuits that have gotten away from favorable termination fell recognized that in heck beyond free. Supreme Court said this is not a fact bound issue. Okay. This is a rule. So this is an element in its infootnote too. And there was when there was some questions about, you know, it won't apply in this case because my facts aren't exactly the same as those that occurred in heck beyond free. And that was said in heck beyond free. The point that I think is also being missed by the other circuits is that those circuits appear to be treating federal habeas as exhaustion and excusing it when that is clearly what heck beyond free said it is not. February termination is an element of the cause of action. You can't plead a case for wrongful conviction or over detention based on improper sentencing or sentence calculations without a finding that by a court of jurisdiction within the state or on federal habeas or by expungement or by executive clemency that
. Okay. And there's a few things I think in heck beyond free that the circuits who don't follow it neglect to mention. Okay. All the other circuits that have gotten away from favorable termination fell recognized that in heck beyond free. Supreme Court said this is not a fact bound issue. Okay. This is a rule. So this is an element in its infootnote too. And there was when there was some questions about, you know, it won't apply in this case because my facts aren't exactly the same as those that occurred in heck beyond free. And that was said in heck beyond free. The point that I think is also being missed by the other circuits is that those circuits appear to be treating federal habeas as exhaustion and excusing it when that is clearly what heck beyond free said it is not. February termination is an element of the cause of action. You can't plead a case for wrongful conviction or over detention based on improper sentencing or sentence calculations without a finding that by a court of jurisdiction within the state or on federal habeas or by expungement or by executive clemency that. The case was improper. What the sentence was improper. Heck beyond free also talks about finality and it's it's. And the principle that toward actions are not the appropriate means to challenge criminal convictions and sentences. And if you look at this case and you look at who Mr. Deamer sued and this is distinguishable from all the other cases and all the other circuits. Mr. Deamer does not allege that these people that he sued calculated his sentence. He's saying the parole board revoked my parole after I fled the state and did not award me credit for time that I was incarcerated in New Jersey. He's claiming as a matter of Pennsylvania law that he's entitled to that credit. The problem is twofold that's not what Pennsylvania law says, but that's not what I'm here to argue. The problem with that is you have a recommitted parole violator. A sentence has been calculated and now you have prison officials faced with a claim by an inmates saying my sentence is wrong, but it's not been reversed
. The case was improper. What the sentence was improper. Heck beyond free also talks about finality and it's it's. And the principle that toward actions are not the appropriate means to challenge criminal convictions and sentences. And if you look at this case and you look at who Mr. Deamer sued and this is distinguishable from all the other cases and all the other circuits. Mr. Deamer does not allege that these people that he sued calculated his sentence. He's saying the parole board revoked my parole after I fled the state and did not award me credit for time that I was incarcerated in New Jersey. He's claiming as a matter of Pennsylvania law that he's entitled to that credit. The problem is twofold that's not what Pennsylvania law says, but that's not what I'm here to argue. The problem with that is you have a recommitted parole violator. A sentence has been calculated and now you have prison officials faced with a claim by an inmates saying my sentence is wrong, but it's not been reversed. It's not invagated or anything. What's the prison officials supposed to do in that case? It's in this case different from HEC, though, because HEC is based upon the concept of the conflict, the intersection of habeas and 1982 and the conflicting results that could be reached. Namely, you're still in prison, your sentence has a man overturned, your conviction has a man overturned, yet you proceed through 1982 to say that that sentence, the confinement, the conviction is wrong. And if you succeed in that and you're going to get money, there is a total conflict because you're still in jail and according to the criminal system, your conviction, your sentence was proper. Here, once someone's out, what kind of what what what, who does it hurt? What's the problem with letting them proceed with a 1982 action to have their rights vindicated through that process? And if it's if they're wrong that indeed the confinement was appropriate, they'll lose that if they're right, they'll get money, but it doesn't do anything that is harmful or in conflict with habeas, doesn't it? I think that the problem is if you look at what the court said in Wilkinson V. Dodson, that argument was offered by Ohio to say that the favorable termination rule should apply to these things that do not seek money damages, that do not seek to invalidate the factor duration of confinement. And what the court said in Wilkinson V. Dodson is what heck be hungry said in 1994, there is no cause of action absent favorable termination. And in rejecting Ohio's argument, it said yes, the Supreme Court, we've looked at all these considerations and this is the rule that we've come up with. Actually Wilkinson talks about success necessarily meaning immediate release or a speedy or release. In other words, they in fact Wilkinson is the one case that I thought targets the fact the inconsistency of someone still being in prison that that we don't have. I thought Wilkinson actually was more helpful to the appellant than to you. Well, I mean, I mean, my rate of Wilkinson your honors is that there's an unequivable statement that there's no 1983 action absent prior validation, no matter what the relief is
. It's not invagated or anything. What's the prison officials supposed to do in that case? It's in this case different from HEC, though, because HEC is based upon the concept of the conflict, the intersection of habeas and 1982 and the conflicting results that could be reached. Namely, you're still in prison, your sentence has a man overturned, your conviction has a man overturned, yet you proceed through 1982 to say that that sentence, the confinement, the conviction is wrong. And if you succeed in that and you're going to get money, there is a total conflict because you're still in jail and according to the criminal system, your conviction, your sentence was proper. Here, once someone's out, what kind of what what what, who does it hurt? What's the problem with letting them proceed with a 1982 action to have their rights vindicated through that process? And if it's if they're wrong that indeed the confinement was appropriate, they'll lose that if they're right, they'll get money, but it doesn't do anything that is harmful or in conflict with habeas, doesn't it? I think that the problem is if you look at what the court said in Wilkinson V. Dodson, that argument was offered by Ohio to say that the favorable termination rule should apply to these things that do not seek money damages, that do not seek to invalidate the factor duration of confinement. And what the court said in Wilkinson V. Dodson is what heck be hungry said in 1994, there is no cause of action absent favorable termination. And in rejecting Ohio's argument, it said yes, the Supreme Court, we've looked at all these considerations and this is the rule that we've come up with. Actually Wilkinson talks about success necessarily meaning immediate release or a speedy or release. In other words, they in fact Wilkinson is the one case that I thought targets the fact the inconsistency of someone still being in prison that that we don't have. I thought Wilkinson actually was more helpful to the appellant than to you. Well, I mean, I mean, my rate of Wilkinson your honors is that there's an unequivable statement that there's no 1983 action absent prior validation, no matter what the relief is. If success and action were necessarily demonstrate the invalidity of the confinement or its duration. And I think when you look at the footnote that I believe the court cited, in fact, it said well, the fortuity of release doesn't change things. It doesn't create a federal cause of action. It doesn't relieve the now former inmate of the consequence of needing to achieve favorable termination. But the fortuity of release is kind of like to mind my the glib statement on Scalia's part. It's not a matter of the fortuity. To me, the fact that the person's out isn't just fortuity. It really has meaning because then there is no conflict anymore. Well, I think they've been in Mr. Demers case, at least as far as the parole board is considered. And his case was properly calculated. He was on appeal in Commonwealth Court. It was being reviewed under an appellant standard and his sentence expired
. If success and action were necessarily demonstrate the invalidity of the confinement or its duration. And I think when you look at the footnote that I believe the court cited, in fact, it said well, the fortuity of release doesn't change things. It doesn't create a federal cause of action. It doesn't relieve the now former inmate of the consequence of needing to achieve favorable termination. But the fortuity of release is kind of like to mind my the glib statement on Scalia's part. It's not a matter of the fortuity. To me, the fact that the person's out isn't just fortuity. It really has meaning because then there is no conflict anymore. Well, I think they've been in Mr. Demers case, at least as far as the parole board is considered. And his case was properly calculated. He was on appeal in Commonwealth Court. It was being reviewed under an appellant standard and his sentence expired. And I think that's probably what Justice Scalia is talking about. And if you look at what Justice Scalia also says in Spencer, Vickanda, they specifically rejected the argument that, hey, this does not become moot when someone is released. And the one of the arguments offered was that I won't be able to file a 1983 action if you don't let me pursue this. And the court said, these are not my words. That's a great non-sequitor. There may be some instances where you may believe something wrong happened, but it's simply not reachable. And it's not reachable here because the elements of the cause of action require favorable termination. And talking about comedy, talking about finality. I have worked for Pennsylvania Board of Prohibition Proof for a fair amount of time. And parole sentence calculation sometimes gets a bit squirrelly for lack of a better term as far as how the sentences are calculated. And what we're asking here is we're asking the federal court to come in and entertain challenges to sentence calculations that have not even been ruled on by Pennsylvania State Courts. I really have, I mean, if you want me to discuss some of the cases, I think, you know, this court has been true to what Hex says. The circuit courts that have gone the other way and have excused favorable termination
. And I think that's probably what Justice Scalia is talking about. And if you look at what Justice Scalia also says in Spencer, Vickanda, they specifically rejected the argument that, hey, this does not become moot when someone is released. And the one of the arguments offered was that I won't be able to file a 1983 action if you don't let me pursue this. And the court said, these are not my words. That's a great non-sequitor. There may be some instances where you may believe something wrong happened, but it's simply not reachable. And it's not reachable here because the elements of the cause of action require favorable termination. And talking about comedy, talking about finality. I have worked for Pennsylvania Board of Prohibition Proof for a fair amount of time. And parole sentence calculation sometimes gets a bit squirrelly for lack of a better term as far as how the sentences are calculated. And what we're asking here is we're asking the federal court to come in and entertain challenges to sentence calculations that have not even been ruled on by Pennsylvania State Courts. I really have, I mean, if you want me to discuss some of the cases, I think, you know, this court has been true to what Hex says. The circuit courts that have gone the other way and have excused favorable termination. If you really look at some of those decisions, I think they tend to mix apples and oranges. We're not here to say you can't file 1983 if you're challenging procedures, okay? And that's what a lot of these cases talk about prison discipline procedures. They don't talk about you were wrong as a matter of law in the way you calculated the sentence under Pennsylvania State law. Thank you. Thank you. Thank you, Aaron. Just three points in a rebuttal to begin with, I think it's the court pointed out, there's little sense to apply the heck rule in a case, both where there's no possibility of conflict with an existing term of imprisonment. That was really what Congress or what what the Supreme Court was concerned about in reconciling the Haviest Attutes in Section 1983. The view is when somebody's incarcerated, there's a particular procedure with particular limitations in order to pursue that kind of claim. Except there is still a conflict because he is a convicted felon, right? He still is a convicted felon. That has not been undone. Well, that's not an undone, y'all. And I think that brings me to my second point, which is closely related
. If you really look at some of those decisions, I think they tend to mix apples and oranges. We're not here to say you can't file 1983 if you're challenging procedures, okay? And that's what a lot of these cases talk about prison discipline procedures. They don't talk about you were wrong as a matter of law in the way you calculated the sentence under Pennsylvania State law. Thank you. Thank you. Thank you, Aaron. Just three points in a rebuttal to begin with, I think it's the court pointed out, there's little sense to apply the heck rule in a case, both where there's no possibility of conflict with an existing term of imprisonment. That was really what Congress or what what the Supreme Court was concerned about in reconciling the Haviest Attutes in Section 1983. The view is when somebody's incarcerated, there's a particular procedure with particular limitations in order to pursue that kind of claim. Except there is still a conflict because he is a convicted felon, right? He still is a convicted felon. That has not been undone. Well, that's not an undone, y'all. And I think that brings me to my second point, which is closely related. Council for the defendant's mentioned the favorable termination is baked into the tort claim as was what Justice Scalia discussed in the heck claim. However, one may view that being for terms of a claim that resembles malicious prosecution, that is simply not the kind of claim that deem represses in this case, because he's not challenging the fact as to whether or not he was a convicted felon. Success on his claim here would in no sense impune whether or not he was a convicted felon. That's accepted. All that is being challenged in this case is whether or not his release date was properly calculated. If he succeeds, again, in no way does it suggest his conviction was unlawful that his pro revocation was unlawful. In any sense, all that is being challenged is his credit for 366 days of confinement to which under Pennsylvania law he has a very strong argument he was legally entitled to. Although under habeas, the duration of confinement is treated just like the conviction or anything else. It's one of the bases for your habeas. You're on a, that's precisely right. And we don't suggest that heck doesn't apply to this case because our challenges, conditions of confinement. But I think that is actually a very strong reason why favorable termination, the most most prosecution theory of favorable termination cannot be what's doing the work in heck to get to the favorable termination rule. Because if that were, as you just explained, the fact that heck applies for challenges like hours which are about length of conviction, not just fact of underlying incarceration, again, that has no apt analog here
. Council for the defendant's mentioned the favorable termination is baked into the tort claim as was what Justice Scalia discussed in the heck claim. However, one may view that being for terms of a claim that resembles malicious prosecution, that is simply not the kind of claim that deem represses in this case, because he's not challenging the fact as to whether or not he was a convicted felon. Success on his claim here would in no sense impune whether or not he was a convicted felon. That's accepted. All that is being challenged in this case is whether or not his release date was properly calculated. If he succeeds, again, in no way does it suggest his conviction was unlawful that his pro revocation was unlawful. In any sense, all that is being challenged is his credit for 366 days of confinement to which under Pennsylvania law he has a very strong argument he was legally entitled to. Although under habeas, the duration of confinement is treated just like the conviction or anything else. It's one of the bases for your habeas. You're on a, that's precisely right. And we don't suggest that heck doesn't apply to this case because our challenges, conditions of confinement. But I think that is actually a very strong reason why favorable termination, the most most prosecution theory of favorable termination cannot be what's doing the work in heck to get to the favorable termination rule. Because if that were, as you just explained, the fact that heck applies for challenges like hours which are about length of conviction, not just fact of underlying incarceration, again, that has no apt analog here. So what I think that demonstrates is what's really doing the work in heck and deriving the heck rule is the reconciliation of section 1983 and habeas. And again, that reconciliation here points very strongly in favor of committing a claim to proceed. Again, as other circuits who have looked at this question have concluded, in order to say that an individual who loses in 1983 claim, again, Congress wrote a very broad section 1983 statute, there would need to be an unambiguous statement from Congress displacing that claim. Now, to be sure there is in the context of an incarcerated individual, the displacement comes from the fact that there's a federal habeas statute that is far more specific and provides their sole remedy. But when that, when an individual can never bring a federal habeas claim, there's no suggestion by Congress that section 1983 has been displaced. And it truly would take congressional action in order to say that a claim like this has been preempted or for. So, you return to the issue, you say at page two of your briefs that the opening briefs that has the district court found, and I think that's a broad, very broad overstatement. This case, squarely presents the question whether heck applies in circumstances where a claimant threw no fold to his or her own, never had access to federal habeas. That's your position here, right? You're saying your client never had access to federal habeas, and if we should grant relief here. Well, you're on that because of the lack of access is why the section 1983 claim is not barred. If he could have brought a claim through through through habeas, it would be a very different circumstance, but it's never been suggested by opponent by lower court that he had access to federal habeas. Well, that's why I questioned you earlier on the be provision of the habeas statute, and it seems to me you did have access, you just didn't use it. Well, I think in this case, as with typically to be sure there will be exceptions, but it is typically the case there is a requirement for exhaustion, which Mr
. So what I think that demonstrates is what's really doing the work in heck and deriving the heck rule is the reconciliation of section 1983 and habeas. And again, that reconciliation here points very strongly in favor of committing a claim to proceed. Again, as other circuits who have looked at this question have concluded, in order to say that an individual who loses in 1983 claim, again, Congress wrote a very broad section 1983 statute, there would need to be an unambiguous statement from Congress displacing that claim. Now, to be sure there is in the context of an incarcerated individual, the displacement comes from the fact that there's a federal habeas statute that is far more specific and provides their sole remedy. But when that, when an individual can never bring a federal habeas claim, there's no suggestion by Congress that section 1983 has been displaced. And it truly would take congressional action in order to say that a claim like this has been preempted or for. So, you return to the issue, you say at page two of your briefs that the opening briefs that has the district court found, and I think that's a broad, very broad overstatement. This case, squarely presents the question whether heck applies in circumstances where a claimant threw no fold to his or her own, never had access to federal habeas. That's your position here, right? You're saying your client never had access to federal habeas, and if we should grant relief here. Well, you're on that because of the lack of access is why the section 1983 claim is not barred. If he could have brought a claim through through through habeas, it would be a very different circumstance, but it's never been suggested by opponent by lower court that he had access to federal habeas. Well, that's why I questioned you earlier on the be provision of the habeas statute, and it seems to me you did have access, you just didn't use it. Well, I think in this case, as with typically to be sure there will be exceptions, but it is typically the case there is a requirement for exhaustion, which Mr. Deamer was back to the procedure. That's what we're returning to requirement in the ACA provision. Yes, Ron, and I think though in most cases, including this case, the federal habeas claim would be channeled through the A provision, and these circumstances, that's why he didn't have access to habeas and why the section 1983 claim. Because even though there is a B provision, he had to go through the A provision when Congress has used the word or. Well, I think the circumstances of this case would make this in A provision. And again, I feel like there's been no suggestion from the government in defense in this case that this could have been alternatively pursued as a B, and I think this would be a been a classic case in A situation. If Mr. Deamer has succeeded in a habeas, then the case would be moved. Well, you know, it could be moved or it couldn't, it's possible he could have a subsequent 1983 action because if you succeeded in federal habeas, that would be the favorable termination that would have satisfied the heck requirement. And then you would no longer be in custody to bring his claim. Well, you're on there, there would be no in custody requirement for the section 1983 claim. So if he had been able to bring a federal habeas, if he had prevailed on that, been released from prison, that I think squarely would have been the kind of favorable termination that heck considered, and that certainly would have allowed him then to subsequently pursue a claim for damages, arguing that there was a constitutional violation. Thank you
. And thank you to Mayor Brown for taking this case on. We've very much appreciated cases where a large will take it under advisement. Thank you